STATE OF MONTANA, Plaintiff and Respondent, v. JAMES GENE MARTIN, a/k/a JAMES GENE TRUJILLO, Defendant and Appellant.
No. 99-627.
SUPREME COURT OF MONTANA
Submitted on Briefs December 7, 2000. Decided May 10, 2001.
2001 MT 83; 305 Mont. 123; 23 P.3d 216
For Respondent: Hon. Joe Mazurek, Attorney General; Jim Wheelis, Assistant Attorney General, Helena; Fred Van Valkenburg, Missoula County Attorney; Karen Townsend, Deputy Missoula County Attorney, Missoula.
¶1 James Gene Martin, a/k/a James Gene Trujillo (Martin), appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on a jury verdict finding him guilty of forgery, attempted deliberate homicide, felony theft, escape, aggravated burglary, and felony assault. We affirm in part and reverse in part.
¶2 Martin raises the following issues:
¶3 1. Does sufficient evidence support the verdict convicting Martin of attempted deliberate homicide?
¶4 2. Did the District Court err in refusing instructions on assault on a peace officer as a lesser included offense of attempted deliberate homicide?
¶5 3. Did the court err in refusing instructions on mitigated attempted deliberate homicide?
¶6 4. Does sufficient evidence support the verdict convicting Martin of escape?
¶7 5. Does sufficient evidence support the verdict convicting Martin of aggravated burglary?
¶8 6. Does sufficient evidence support the verdict convicting Martin of felony assault?
¶9 7. Does sufficient evidence support the verdict convicting Martin of felony theft?
¶10 8. Did the prosecutor commit misconduct during closing argument and, if so, did the misconduct deprive Martin of a fair trial?
BACKGROUND
¶11 Just before 6:00 p.m. on October 21, 1998, Martin walked up to the drive-up window of the Western Security Bank in Missoula, Montana, and attempted to cash a forged check. The teller on duty recognized Martin from pictures which had been distributed to bank employees after he had passed an earlier forged check on the same bank account. The teller attempted to stall Martin while her supervisor called the police.
¶12 Missoula City Police Sergeant Robert Heinle (Heinle) responded to the call from the bank. As Heinle, in full police uniform, approached the bank on foot, Martin spotted him and began to run away. Heinle gave chase. With Heinle shouting “Halt” or “Stop,” they crossed the street, weaving between vehicles stopped at a red light in rush-hour traffic. When they reached a parking lot across the street from the bank, Martin turned and fired two shots from a Colt handgun at Heinle. One shot hit Heinle in the shoulder and damaged his spinal
¶13 Martin stopped to pick up Heinle‘s service revolver, then continued running through streets and alleys in downtown Missoula, pursued first by witnesses to the shooting and then by additional police and sheriff‘s officers. Martin entered a bakery through an unlocked back door and when officers followed him in, ran out through the front door. Martin was apprehended a short time later behind a piece of plywood in an alley.
¶14 The State of Montana (State) charged Martin with committing the offenses of forgery, attempted deliberate homicide, felony theft, escape, aggravated burglary, and assault. Due to the amount of local publicity in Missoula, trial was held in Butte, Montana. The jury heard testimony from numerous witnesses to the events at the bank, the shooting and the subsequent chase, including Heinle and the police officers and sheriff‘s deputies who responded to an “officer down” message after Heinle was shot. After a week-long trial, the jury found Martin guilty of all the charged offenses. The District Court sentenced him and entered judgment. Martin appeals.
DISCUSSION
¶15 1. Does sufficient evidence support the verdict convicting Martin of attempted deliberate homicide?
¶16 The District Court instructed the jury that, in order to convict Martin of attempted deliberate homicide, it must find he “purposely or knowingly attempted to cause the death of Robert Heinle, a human being, by performing an act which constituted a material step toward the commission of the offense of deliberate homicide.” The jury also was instructed that “a person acts purposely ... when it is his conscious object to cause that result” and that “[a] person acts knowingly ... when he is aware that there exists a high probability that his conduct will cause a specific result.” The jury convicted Martin of attempted deliberate homicide, and he contends the evidence was insufficient to prove he acted with the purpose of causing Heinle‘s death.
¶17 The existence of a mental state is normally inferred from conduct and surrounding circumstances. See
¶18 Martin points to witness testimony that, after he shot Heinle, the expression on Martin‘s face was one of surprise, shock, and panic. Another witness testified on cross-examination that, after the shooting, Martin appeared confused and looked as though he did not know what to do. Martin contends that, if he had intended to kill Heinle, he would not have looked surprised or confused when Heinle dropped to the ground. Martin also points to the videotaped statement he gave to police officers in which he explained he fired the gun because “I was just hopin’ I could turn around and, and you know kinda scare him to where he‘d just like back off and then I‘d have, you know, a chance to get a bigger head start on him.”
¶19 The evidence on which Martin relies, however, is only part of the evidence presented to the jury. In Martin‘s videotaped statement, he gave conflicting stories, at first saying that an acquaintance of his had shot Heinle. Witnesses to the events prior to the shooting testified that, during the foot chase, Martin appeared calm. According to one witness, Heinle was running hard but Martin was merely jogging or “moseying.” Another witness testified he saw Martin turn and slow before he shot. The jury also heard testimony from an acquaintance of Martin‘s that Martin carried his pistol with him every day and had boasted he would shoot anyone who “got in [his] way,” even a “cop.” Moreover, it is undisputed that Martin shot at Heinle not once, but twice.
¶20 On this record, with the required deference for jury resolution of conflicts in the evidence and viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found the essential elements of attempted deliberate homicide beyond a reasonable doubt. We hold that sufficient evidence supports the verdict convicting Martin of attempted deliberate homicide.
¶21 2. Did the District Court err in refusing instructions on assault on a peace officer as a lesser included offense of attempted deliberate homicide?
¶22 The District Court refused Martin‘s offered instructions on assault on a peace officer as a lesser included offense of attempted deliberate
¶23 This Court reviews jury instructions to determine whether the instructions as a whole fully and fairly instruct the jury on the law applicable to the case. State v. Hall, 1999 MT 297, ¶ 39, 297 Mont. 111, 39, 991 P.2d 929, ¶ 39. In order for the district court to instruct the jury on a lesser included offense, the record must contain evidence from which the jury could rationally find the defendant guilty of the lesser offense and acquit of the greater, and the offense must actually constitute an included offense of the crime charged. State v. Beavers, 1999 MT 260, ¶ 23, 296 Mont. 340, ¶ 23, 987 P.2d 371, ¶ 23.
¶24 Relying on State v. Castle (1997), 285 Mont. 363, 948 P.2d 688, and
¶25 In Castle, we held that, under the express terms of
¶26 The offense of assault on a peace officer does not bear the same kind of relationship to the offense of attempted deliberate homicide. A person who purposely or knowingly causes bodily injury to a peace officer commits the offense of assault on a peace officer. Section
¶27 We conclude that assault on a peace officer is not a lesser
¶28 3. Did the court err in refusing instructions on mitigated attempted deliberate homicide?
¶29 As stated under Issue 2, in order for a district court to instruct the jury on a lesser included offense, the record must contain evidence from which the jury could rationally find the defendant guilty of the lesser offense and acquit of the greater, and the offense must actually constitute an included offense of the crime charged. Beavers, ¶ 23. Mitigated attempted deliberate homicide is a lesser included offense of attempted deliberate homicide only when the defendant presents evidence of mitigation. See State v. Knight (1991), 251 Mont. 85, 89, 822 P.2d 99, 102.
¶30 The evidence required is that the person acted under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. See
¶31 Martin relies on State v. Buckley (1976), 171 Mont. 238, 243, 557 P.2d 283, 283, for the proposition that an instruction on mitigated attempted deliberate homicide is required if there is any evidence of mitigation. He points again to the evidence of the look of surprise, shock, and panic on his face after he shot Heinle and, in addition, to evidence that he and his pregnant girlfriend were homeless and he was unemployed. Martin contends that whether he acted under extreme mental or emotional stress was a question of fact for the jury.
¶32 Martin‘s reliance on Buckley is misplaced. There, we concluded that the defendant‘s statement that he was “in a subtle state of mind, a subconscious state of mind” when he shot his victim was not sufficient to justify a jury instruction on mitigated deliberate homicide, because it did not constitute evidence of extreme mental or emotional distress. Buckley, 171 Mont. at 242, 557 P.2d at 285. We did not conclude that any quantum of evidence of mitigation, no matter how small, is sufficient to require an instruction on mitigated attempted deliberate homicide.
¶33 We have stated:
[F]or a defendant accused of deliberate homicide to be entitled to an instruction on mitigated deliberate homicide, the defendant must put forth some evidence demonstrating that he or she acted under extreme mental or emotional stress for which there is reasonable explanation or excuse.
State v. Howell, 1998 MT 20, ¶ 20, 287 Mont. 268, ¶ 20, 954 P.2d 1102, ¶ 20. This requires evidence of an extreme emotional stress resulting from provocation of some sort, in the form of a reasonable excuse or explanation. Hans v. State (1997), 283 Mont. 379, 399, 942 P.2d 674, 686, citing State v. Dumlao (Haw. 1986), 715 P.2d 822, 829-31. As an example of a type of evidence which is insufficient, we have repeatedly determined that evidence of a defendant‘s anger or intoxication is insufficient to warrant an instruction on mitigated deliberate homicide. See, e.g., State v. Goulet (1997), 283 Mont. 38, 42, 938 P.2d 1330, 1332-33.
¶34 Martin‘s evidence concerning the look on his face after he shot Heinle, and his unemployment, homelessness, and pregnant girlfriend do not indicate an extreme emotional stress resulting from provocation of some sort forming a reasonable excuse or explanation for shooting Heinle. We conclude that Martin‘s evidence is not sufficient to support his claim that, when he shot Heinle, he had extreme mental or emotional stress for which there is reasonable explanation or excuse. We hold, therefore, that the District Court did not err in refusing instructions on mitigated attempted deliberate homicide.
¶35 4. Does sufficient evidence support the verdict convicting Martin of escape?
¶36 The State charged Martin with escape based on his running away from Heinle and the other officers who pursued him. Martin asserts there was insufficient evidence to support his conviction on this charge because he was never placed in official detention and, as a result, he could not have formed the requisite mental state for the offense of escape.
¶37 Section
¶39 Here, as to the first part of the test, it is undisputed that Heinle had authority to arrest Martin. The second element is whether Heinle asserted his authority with intention to effect an arrest. Several witnesses testified that, as he chased Martin, Heinle yelled out for Martin to “stop” or “halt.” The witnesses all recognized Heinle as a police officer because he was in full police uniform, and Martin admitted he knew Heinle was a “cop” as he was being pursued. We conclude Heinle asserted his authority with intention to effect an arrest.
¶40 The third element is restraint of the person arrested. Where, as here, restraint is claimed to have been accomplished via an oral statement by the officer, rather than via physical restraint, the pivotal question is whether a reasonable person—innocent of any offense—would have felt free to walk away. Thornton, 218 Mont. at 323, 708 P.2d at 277-78 (citations omitted). In this case, although Heinle was unable to place Martin under physical restraint and there is no evidence that Heinle said “You are under arrest,” we conclude that a reasonable person would not have felt free to walk away from the uniformed police officer running after him and shouting “Halt” or “Stop.”
¶41 The dissent mischaracterizes our conclusion by stating it as “if an officer intends to arrest and restrain a person, saying ‘stop’ constitutes an oral statement of arrest and restraint.” Our conclusion is not that broad. Indeed, as our discussion indicates, we have merely taken into account the facts and circumstances before us.
¶42 Martin was in the act of committing a criminal offense when he was approached by Heinle—a uniformed police officer. For his part, Heinle was approaching Martin in response to a call from the bank where Martin was in the act of perpetrating a crime similar to one he had committed in the recent past against the same bank. Spotting the approaching police officer, Martin fled and Heinle gave chase, shouting for Martin to “halt” or “stop.” During the ensuing foot chase, Martin
¶43 Under these facts and context, it is inconceivable that Martin did not recognize Heinle‘s command that he “halt” or “stop” as the officer‘s assertion of authority with intention to effect Martin‘s arrest. It is equally inconceivable that Martin reasonably believed he was free to walk away.
¶44 On this regard, Martin‘s flight and subsequent conduct provides indisputable evidence that he knew: (1) Heinle was approaching him at the bank to arrest him for his present and past criminal conduct; (2) that by demanding he “halt” or “stop,” Heinle was asserting his authority and intention to effect Martin‘s arrest; and (3) that Martin was not free to walk away. Any other conclusion would exalt form over substance, defy logic and common sense, and ascribe a talismanic significance to the words “You are under arrest” that the law does not require.
¶45 We conclude there was sufficient evidence to support a jury finding that Martin was placed in official detention. That being the only element of the escape charge Martin contests, and viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found the essential elements of the offense of escape beyond a reasonable doubt. Therefore, we hold sufficient evidence supports the verdict convicting Martin of escape.
¶46 5. Does sufficient evidence support the verdict convicting Martin of aggravated burglary?
¶47 With regard to the offense of aggravated burglary, the District Court instructed the jury:
A person commits the offense of aggravated burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein, and in effecting entry or in the course of committing the offense or in immediate flight thereafter, he is armed with a weapon.
Martin‘s argument that the evidence was insufficient to prove aggravated burglary hinges entirely on his argument under Issue 4. The aggravated burglary charge was based on his entry into the bakery for the purpose of committing the offense of escape. He asserts that, absent sufficient evidence to support the conviction for escape,
¶48 We determined above, however, that there was sufficient evidence to support Martin‘s conviction for escape and, as a result, his argument as to aggravated burglary also fails. We hold sufficient evidence supports the verdict convicting Martin of aggravated burglary.
¶49 6. Does sufficient evidence support the verdict convicting Martin of felony assault?
¶50 A person commits the offense of felony assault if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon. See
¶51 The felony assault charge was based on events occurring immediately before Martin‘s apprehension behind the plywood in the alley. Turner had followed Martin out the front door of the bakery and into the alley, where Martin entered a small enclosure boarded up with plywood. The enclosure had a hole in it about 20 inches square and, as Turner stooped down to look through the hole, Martin looked out the hole directly at him. Recognizing Martin as the man he had chased out of the bakery, Turner identified himself and yelled at Martin to drop the gun and show his hands. Martin looked out twice more during this time.
¶52 Turner testified he then saw a gun appear in the hole in the plywood.
[T]he gun was being held firmly.... As I continued to watch, the gun then began to turn, and the head of the individual appeared, the person looked directly at me, and the gun turned and pointed directly at me.
Thinking he was going to be fired on or, in his words, that there was a bullet “already on its way” to him, Turner fired a shot. Martin finally disappeared from view and threw a gun out through the hole in the plywood.
¶53 Martin testified that he did not intend to make Turner think he was going to shoot Turner. He argues his mental state, not Turner‘s perception of it, controls as to the “knowingly” or “purposely” element of felony assault.
¶54 Martin is correct in part. The “knowingly” or “purposely”
¶55 As to the separate element of causing reasonable apprehension, the unambiguous testimony of the victim may constitute sufficient evidence to establish reasonable apprehension of serious bodily injury. See State v. Hagberg (1996), 277 Mont. 33, 39-40, 920 P.2d 86, 89-90; Matt, 249 Mont. at 146, 814 P.2d at 58. Given the circumstances of the pursuit and the shooting of Heinle, of which both Turner and Martin were aware, and the way the gun was pointed at Turner, the evidence was sufficient for the jury to find Turner felt reasonable apprehension of serious bodily injury.
¶56 On this record and viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found the essential elements of the offense of felony assault beyond a reasonable doubt. We hold sufficient evidence supports the verdict convicting Martin of felony assault.
¶57 7. Does sufficient evidence support the verdict convicting Martin of felony theft?
¶58 Martin was found guilty of the offense of felony theft of property for exerting unauthorized control over Heinle‘s police department weapon, a .40 caliber Baretta Model 96 pistol. The applicable felony theft statute,
¶59 The Missoula City Police Chief presented the only evidence on the value of Heinle‘s pistol. He testified, “I don‘t have a clue what the market value of this particular weapon would be,” and went on to explain that, if an officer lost a weapon, the department would buy a replacement weapon from the manufacturer. He estimated that to replace a weapon like Heinle‘s would cost about $645.
¶60 In a felony theft case, the value of the property taken is an essential element which must be proven beyond a reasonable doubt. State v. Sunday (1980), 187 Mont. 292, 300, 609 P.2d 1188, 1193. Section
“Value” means the market value of the property at the time and place of the crime, or, if the market value cannot be satisfactorily ascertained, the cost of the replacement of the property within a reasonable time after the crime.
Accordingly, evidence of replacement value of stolen property is to be considered only when the market value “cannot be satisfactorily ascertained.”
¶61 In this case, the State presented neither evidence of the market value of the pistol nor evidence that the market value could not be satisfactorily ascertained. Instead, it relied solely on evidence of the replacement value of the weapon to meet its burden of proof. We conclude that a rational finder of fact could not have found the essential elements of felony theft, as defined by statute, beyond a reasonable doubt. Therefore, we hold insufficient evidence supports the verdict convicting Martin of felony theft.
¶62 8. Did the prosecutor commit misconduct during closing argument and, if so, did the misconduct deprive Martin of a fair trial?
¶63 Prosecutorial misconduct is measured by reference to established norms of professional conduct. State v. Duffy, 2000 MT 186, ¶ 35, 300 Mont. 381, 35, 6 P.3d 453, ¶ 35, citing Everroad v. Indiana (1991), 571 N.E.2d 1240, 1244. To establish that misconduct justifies reversal of a conviction, the defendant must show that the alleged prosecutorial misconduct violated his or her substantial rights. Duffy, ¶ 35, citing State v. Soraich, 1999 MT 87, ¶ 20, 294 Mont. 175, 20, 979 P.2d 206, ¶ 20. We will not presume prejudice from charges of prosecutorial misconduct. Soraich, ¶ 20.
¶64 In this case, the prosecutor remarked in his rebuttal closing argument,
Jimmy Martin doesn‘t have to face the death penalty in this case. It means that he can argue, regardless of what he‘s convicted of here, that the Judge can give him whatever sentence falls within the Judge‘s power to sentence in this case ranging from probation to life in prison.
He will always be able to go over and give his mother a hug. He will always be able to sit up straight.
At that point, defense counsel objected to these remarks as prosecutorial misconduct and the District Court overruled the objection. Martin asserts on appeal that the remarks constituted prosecutorial misconduct and deprived him of a fair trial.
¶65 Martin points out that this Court has held it prejudicial error for
¶66 Sentencing is solely the duty of the trial court and the jury‘s verdict should not be influenced in any way by sentencing considerations. State v. Stewart, 2000 MT 379, ¶ 44, 303 Mont. 507, ¶ 44, 16 P.3d 391, ¶ 44, citing State v. Brodniak (1986), 221 Mont. 212, 226, 718 P.2d 322, 332. Therefore, the prosecutor‘s comments relating to sentencing constituted misconduct.
¶67 We also must consider, however, whether this prosecutorial misconduct prejudiced Martin‘s substantial rights. The State points out that during her closing argument, Martin‘s defense counsel made the following remarks:
Ladies and gentlemen, this whole thing has been a tragedy. We all feel, as human beings, for Bob Heinle. I mean, any one of us would turn back the clock, make this be different if we could only do this. None of us are standing here to minimize what happened. I‘m not. Jimmy Martin‘s not. His family‘s not. We all share the profound sadness and grief in this case.
But, as jurors, you have to look at the facts of the case. You cannot—you cannot only see the tragedy of Bob Heinle.
Defense counsel then went on to caution the jury to decide the case on the facts, not on sympathy, passion, or public opinion. The State contends that the remarks about which Martin now complains in the prosecution‘s rebuttal closing were made in response to the above remarks by defense counsel.
¶68 Martin asserts the prosecutor raised the subject of the judge‘s sentencing discretion in order to influence the jury to find him guilty of all the greater felony offenses rather than any of the lesser included offenses, thus making a light sentence unlikely. However, we have determined that there was sufficient evidence to support the jury‘s guilty verdicts. Having reviewed the record, and in light of all the surrounding circumstances, including the context in which the remarks were made, we hold that Martin has not established prejudice
¶69 Affirmed in part and reversed as to the felony theft conviction.
JUSTICES NELSON and REGNIER and DISTRICT JUDGE LANGTON concur.
JUSTICE LEAPHART, concurring in part and dissenting in part.
¶70 I concur with the Court‘s resolution of issues one, two, three, six, seven and eight. For the following reasons, I dissent as to issues four and five.
¶71 The majority opinion finds Officer Heinle‘s words of “stop” and “halt” sufficient not only to “assert his authority with intention to effect an arrest,” but also sufficient to constitute “restraint of the person arrested.” While we have broadly defined “restraint” to include constructive restraint, such as restraint by oral statement of arrest without any physical contact, we still require that an officer adequately communicate the fact of arrest to a person whom the officer intends to restrain. I do not agree with the majority that if an officer intends to arrest and restrain a person, saying “stop” constitutes an oral statement of arrest and restraint.
¶72 In both Thornton and State v. Widenhofer (1997), 286 Mont. 341, 950 P.2d 1383, we held that the officers had constructively restrained the defendants when the officers told the defendants they were “under arrest.” While I agree that an oral statement of arrest suffices to place a defendant under restraint, I do not believe that “stop” or “halt” are the functional equivalents for the purpose of placing someone under restraint. In Thornton, we broadened the definition of restraint, but the majority rule today allows an officer to claim he or she has arrested and restrained a person if the officer so much as says “stop.” Without restraint, a person has nothing from which to escape and cannot be convicted of escape. Because I do not agree that Martin was restrained, I would reverse the escape conviction.
¶73 Martin‘s aggravated burglary conviction was based on the contention that he entered the premises with the intent to commit the offense of escape. Because I would reverse the escape conviction, the conviction for aggravated burglary would also fail.
JUSTICE TRIEWEILER and the DISTRICT JUDGE McKITTRICK, concurring in part and dissenting in part:
We concur in the foregoing concurring and dissenting opinion of JUSTICE LEAPHART.